Citation Nr: 0627683
Decision Date: 09/01/06 Archive Date: 09/12/06
DOCKET NO. 04-22 498 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Entitlement to a rating higher than 10 percent for tinnitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Nancy Rippel, Counsel
INTRODUCTION
The veteran, who is the appellant, served on active duty from
May 1970 to December 1971, and from January 1975 to September
1995.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of an April 2003 rating decision of the Department
of Veterans' Affairs (VA) Regional Office (RO) in St. Paul,
Minnesota.
FINDING OF FACT
The 10 percent rating currently in effect is the maximum
schedular rating for tinnitus, whether tinnitus is perceived
in one ear or each ear; factors warranting an extraschedular
rating are not shown.
CONCLUSION OF LAW
There is no legal basis for the assignment of a schedular
rating higher than 10 percent for tinnitus. 38 U.S.C.A.
§1155 (West 2002); 38 C.F.R. §4.87, Diagnostic Code 6260
(2002, 2005); Smith v. Nicholson, 19 Vet. App. 63 (2005)
rev'd, 451 F.3d 1344 (Fed. Cir. 2006).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and
implemented in part at 38 C.F.R § 3.159, amended VA's duties
to notify and to assist a claimant in developing information
and evidence necessary to substantiate a claim.
The U. S. Court of Appeals for Veterans Claims has held that
the statutory and regulatory provisions pertaining to VA's
duty to notify and to assist do not apply to
a claim if resolution of that claim is based on statutory
interpretation, rather than consideration of the factual
evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149
(2001).
In this case, the facts are not in dispute. Resolution of
the appeal is dependent on interpretation of the regulations
pertaining to the assignment of disability ratings for
tinnitus.
Because there is no reasonable possibility that further
notice or assistance would aid in substantiating the claim,
any deficiency as to VCAA compliance is rendered moot.
Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance
with the VCAA is not required if no reasonable possibility
exists that any notice or assistance would aid the appellant
in substantiating the claim).
REASONS AND BASES FOR FINDING AND CONCLUSION
In July 1998, the RO granted service connection for tinnitus
and assigned a 10 percent disabling, effective from October
1995, under Diagnostic Code 6260. The veteran filed a claim
for increased rating in March 2003. The RO denied the claim
in April 2003, and the veteran disagreed with that rating
decision. He seeks a separate 10 percent rating for tinnitus
in each ear.
Disability evaluations are determined by application of VA's
Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R.
Part 4. The percentage ratings contained in the Rating
Schedule represent, as far as can be practicably determined,
the average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and their residual conditions in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Tinnitus is evaluated under DC 6260, which was revised
effective June 13, 2003, in part to clarify existing VA
practice that only a single 10 percent rating is assigned for
tinnitus, whether tinnitus is perceived as being in one ear
or each ear or in the head. 38 C.F.R. § 4.87, DC 6260, note
2 (2005).
In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the U.S.
Court of Appeals for Veterans Claims (CAVC) held that the
pre-1999 and pre-June 13, 2003, versions of DC 6260 required
the assignment of a separate, 10 percent rating for tinnitus
in each ear. VA appealed this decision to the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit). To avoid
burdens on the adjudication system, delays in the
adjudication of other claims, and unnecessary expenditure of
resources based on court precedent that may ultimately be
overturned on appeal, the Secretary imposed a stay at the
Board on the adjudication of tinnitus claims affected by
Smith. The specific claims affected by the stay essentially
included all claims in which a claim for compensation for
tinnitus was filed prior to June 13, 2003, and a rating
higher than 10 percent was sought.
In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the
Federal Circuit reversed the CAVC decision in Smith, and
affirmed VA's long-standing interpretation of pre-June 13,
2003, DC 6260 as authorizing only a single 10 percent rating
for tinnitus, whether perceived as unilateral or bilateral.
The Federal Circuit explained that an agency's interpretation
of its own regulations was entitled to substantial deference
by the courts as long as that interpretation was not plainly
erroneous or inconsistent with the regulations. The Federal
Circuit then found that there was a lack of evidence in the
record suggesting that VA's interpretation of 38 C.F.R.
§ 4.25(b) and DC 6260 was plainly erroneous or inconsistent
with the regulations, and concluded that the CAVC erred in
not deferring to VA's interpretation.
As a consequence of the Federal Circuit's decision, the
Secretary of VA rescinded the stay that had been imposed on
all claims affected by Smith to include the claim at hand,
and directed the Board to resume adjudication of the
previously stayed claims consistent with VA's longstanding
interpretation that a single 10 percent disability rating is
the maximum rating available under DC 6260, regardless of
whether the tinnitus is perceived in one ear or each ear.
In light of the foregoing, the Board concludes that the
version of DC 6260 in effect prior to June 2003 precludes a
schedular rating higher than 10 percent for tinnitus.
Therefore, the veteran's claim for a separate 10 percent
rating for tinnitus in each ear must be denied under both the
old and current versions of DC 6260.
As the service-connected tinnitus has been assigned the
maximum schedular rating available for tinnitus by regulation
and DC 6260, which has been upheld by the U.S. Court of
Appeals for the Federal Circuit, there is no legal basis upon
which to award a separate, 10 percent rating for tinnitus in
each ear. As the disposition of the claim is based on
interpretation of the law, and not the facts of the case, the
claim must be denied based on a lack of entitlement under the
law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Also, the record does not suggest that tinnitus requires
frequent hospitalization or causes marked interference with
employment or otherwise suggests that referral for an
extraschedular consideration under 38 C.F.R. § 3.321 is
indicated.
ORDER
A rating higher than 10 percent for tinnitus is denied.
____________________________________________
GEORGE E. GUIDO JR.
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs